Citation Nr: 1513588
Decision Date: 03/30/15 Archive Date: 04/03/15
DOCKET NO. 11-08 391 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to a rating higher than 10 percent for right knee chondromalacia.
2. Entitlement to a rating higher than 10 percent for left knee chondromalacia.
3. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Shamil Patel, Counsel
INTRODUCTION
The Veteran had active service from September 1986 to May 1996.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case has since been transferred to the RO in Houston, Texas.
The July 2010 rating decision, in relevant part, granted a temporary total evaluation under the provisions of 38 C.F.R. § 4.30 for the right knee from May 18, 2010, through June 30, 2010. The previously assigned 10 percent rating for the right knee was otherwise continued. The rating decision also continued the assigned 10 percent rating for the left knee disability.
The Veteran and his wife testified before the undersigned Acting Veterans Law Judge (AVLJ) at an October 2013 Travel Board hearing. A copy of the hearing transcript is of record. The appeal was then remanded by the Board in October 2014 for additional development.
The Board notes that the Veteran has claimed that his service-connected disabilities, including his bilateral knee disabilities, prevent him from working. See July 2014 Report of General Information. In the context of an increased rating claim, evidence of unemployability due to service-connected disabilities may raise a derivative claim for a total disability rating due to individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2011). This derivative claim is part and parcel of the claim for higher ratings, and therefore the Board can exercise jurisdiction over it.
This appeal has been processed through the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.
The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Right knee flexion was at least 110 degrees and extension was at least 10 degrees during the appeal period.
2. From January 4, 2010, the Veteran's right knee symptoms included episodes of effusion, locking, and pain.
3. Left knee flexion was 140 degrees and extension was at least 10 degrees during the appeal period.
CONCLUSIONS OF LAW
1. The criteria for a rating higher than 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.14., 4.40, 4.45, 4.71a, DC 5260 (2014).
2. The criteria for a separate 20 percent rating for dislocated semilunar cartilage in the right knee have been met from January 4, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.14., 4.40, 4.45, 4.71a, DC 5258 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014). Here, the Veteran was provided with the relevant notice and information in a June 2010 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's bilateral knee disabilities. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
Finally, the Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).
II. Increased Ratings
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2014).
Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).
The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).
The Veteran's left and right knee disabilities are currently assigned 10 percent ratings under Diagnostic Code (DC) 5014-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.
The diseases under DCs 5013 through 5024, in relevant part, will be rated on limitation of motion of the affected parts, as arthritis, degenerative (DC 5003). Notably, DC 5003, which provides for a maximum 20 percent rating for both knees together, would not provide a greater benefit than the separate 10 percent ratings assigned for each knee currently. See 38 C.F.R. § 4.25. Therefore, DC 5003 will not be discussed.
Disabilities of the knee are rated under 38 C.F.R. § 4.71, DCs 5256 to 5263. In this case, there is no evidence of ankylosis of the knee (DC 5256), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263).
DC 5257 addresses "other" knee impairment, including lateral instability or recurrent subluxation. A 10 percent rating is assigned for slight consequent impairment. A 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71. These words "slight," "moderate," and "severe" are not defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.
Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a.
Diagnostic Code 5259 provides for a 10 percent rating based on evidence of symptomatic, removed semilunar cartilage. Id.
Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Id.
Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id.
Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.
A. Right Knee
First, a rating under DC 5257 is not warranted. While the Board acknowledges the Veteran's reports of buckling or instability in the knee, instability and/or laxity was specifically noted to be absent in treatment records and VA examinations dated April 2010, May 2010, June 2010, November 2010, January 2013, and December 2014. The record is negative for any positive objective findings of instability in the right knee during the appeal period.
Second, a separate rating under DC 5258 is warranted. The evidence reflects a diagnosis of a right knee meniscal tear. See May 2010 VA treatment records. Moreover, there is objective evidence of effusions in the knee recorded in March 2010, April 2010, and December 2014. Moreover, the Veteran reported a history of the knee "almost locking" in March 2010. A January 2013 VA examination also noted locking and pain in the knee. These findings are consistent with the criteria for dislocated semilunar cartilage under DC 5258. The Board also notes that the symptoms contemplated by DC 5258 (episodes of locking, pain, and effusion in the joint) are wholly separate from the current rating under DC 5260, which contemplates only limitation of motion. Therefore, these ratings are not "pyramiding" under 38 C.F.R. § 4.14. This separate 20 percent rating for the right knee under DC 5258 is assigned from January 4, 2010, the date on which the first effusion is noted to be present.
Third, as the Board has awarded a rating under DC 5258, consideration of DC 5259 is not appropriate, as these to diagnostic codes clearly do contemplate similar disabilities and symptoms.
Fourth, a higher rating under DC 5260 is not warranted. As noted above, a higher 20 percent rating under this code requires flexion of the leg to be limited to 30 degrees. However, at worst, right knee flexion measured at least 110 degrees during the appeal period, even when accounting for pain and repetitive testing. This finding was recorded in June 2010. Additional range of motion tests in December 2009, March 2010, November 2010, January 2013, and December 2014 recorded even greater levels of flexion.
Finally, a separate rating under DC 5261 is not warranted. As noted above, a 10 percent rating is warranted when extension is limited to 10 degrees. The evidence in this case reflects full extension in December 2009, March 2010, June 2010, November 2010, and January 2013. Notably, extension was measured at 10 degrees during the December 2014 VA examination. However, the Board will not assign a separate rating in this instance. The Veteran's right knee is already assigned a 10 percent rating under DC 5260 for limitation of flexion. Nevertheless, as discussed earlier, flexion in the right knee during the appeal period far exceeded the level of impairment (45 degrees) necessary to warrant this 10 percent rating. The assignment of a 10 percent rating under DC 5261 for limitation of extension would constitute pyramiding. In other words, the Veteran is already compensated at 10 percent for limitation of motion of the knee, even though the evidence does not show a compensable level of flexion. Therefore, any impairment associated with extension limited to 10 degrees is already being compensated by the currently assigned rating.
B. Left Knee
First, a rating under DC 5257 is not warranted. While the Board acknowledges the Veteran's reports of buckling or instability in the knee, instability and/or laxity was specifically noted to be absent in treatment records and VA examinations dated April 2010, June 2010, January 2013, and December 2014. The record is negative for any positive objective findings of instability in the left knee during the appeal period.
Second, ratings under DC 5258 or 5259 are not warranted. The evidence does not reflect any complaints or findings of a left knee cartilage or meniscus injury during the appeal period. Unlike the Veteran's right knee, there are no complaints of locking or effusion associated with the left knee.
Third, a higher rating under DC 5260 is not warranted. The evidence reflects full flexion of 140 degrees in May 2009, December 2009, April 2010, June 2010, January 2013, and December 2014. There are no findings of flexion limited to the noncompensable level of 60 degrees, let alone the 30 degrees associated with a higher 20 percent rating.
Finally, a rating under DC 5261 is not warranted. Extension was full (0 degrees) during most of the appeal period. A December 2014 VA examination noted extension limited to 10 degrees. However, as with the Veteran's right knee discussed above, a 10 percent rating under DC 5261 is not appropriate. The Veteran is already compensated at 10 percent for limitation of motion of the knee, even though the evidence does not show a compensable level of flexion. Therefore, any impairment associated with extension limited to 10 degrees is already being compensated by the currently assigned rating.
C. Extraschedular Consideration
In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating.
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), aff'd sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral knee disabilities with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. That is, the Veteran's limitation of motion of the bilateral knees, and effusion and locking of his right knee, is expressly contemplated by the rating criteria. Additional manifestations, such as instability or ankylosis, are considered by the rating schedule but are not demonstrated by the evidence. There is no indication that the Veteran's knee disabilities result in any symptoms that fall so far outside the rating schedule as to render its application inadequate.
Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
ORDER
A rating higher than 10 percent for right knee chondromalacia is denied.
A separate 20 percent for right knee dislocated semilunar cartilage is granted from January 4, 2010.
A rating higher than 10 percent for left knee chondromalacia is denied.
REMAND
As noted above, the Veteran has raised a derivative claim for TDIU. However, additional development of this claim is necessary prior to adjudicating it on the merits. Specifically, during a June 2010 VA examination, the Veteran reported that he was in a vocational rehabilitation program to become trained in digital imaging and graphic design. In his December 2014 VA Form 21-8940, the Veteran indicated that he was enrolled in a Communication Design program at Texas State University, which he is scheduled to complete in May 2015. Therefore, this TDIU claim should be remanded in order to obtain any outstanding vocational rehabilitation records and associate them with the claims file.
Moreover, the Veteran should be provided with the relevant notice regarding the criteria and necessary evidence to substantiate a TDIU claim.
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's vocational rehabilitation records and associate them with the claims file so they may be considered. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain them would be futile, this must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1).
2. Send the Veteran and his representative a letter explaining how to establish entitlement to a TDIU and requesting that he furnish any other information and/or evidence pertinent to this derivative TDIU claim.
3. Then readjudicate this remaining claim in light of this and all other additional evidence. If the claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative an SSOC and, after they have had an opportunity to respond to it, return the file to the Board for further appellate consideration the claim.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs